Jaan Sheikh Babu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2603/2018

[2022] HKCFI 2414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2603 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1.   Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.   Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review.  He named the Immigration Department as the proposed respondent and the Director of Immigration (the “Director”) as an interested party.  He did not identify the decision sought to be reviewed.  However, in his supporting affirmation, he annexed a copy of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 13 November 2018 (the “Decision”). Thus, it is amply clear that he wished to seek leave to apply for judicial review of the Decision of the Board rejecting his appeal against the decision of the Director in his notice of decision dated 11 September 2017 (the “Notice”).  Accordingly, leave was granted to amend his Form 86 to give effect to the above.

2.The Applicant is a national of India, now aged 41.   He entered Hong Kong on 18 April 2005 as a visitor and was permitted to remain until 2 May 2005.  He overstayed and was arrested on 15 January 2009.

3.Then he raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was rejected by the Director on 12 September 2012.  His petition against that decision was dismissed on 28 November 2012.  That decision became final.  Following the implementation of the Unified Screening Mechanism (“USM”), his claim was also assessed on BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3] grounds.  By the Notice dated 11 September 2017, the Director rejected his remaining claims. 

4.He appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 13 November 2018, the Board dismissed his appeal.  On 19 November 2018, he applied for leave to apply for judicial review of that Decision.  The Applicant did not request for an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.    In gist, he claimed that he would be killed by family members of his brother’s wife, Sheila because she eloped with her brother.

6.The Applicant was born in Kolkata, India.  He is married with two children and his family used to reside in Nepal.  His parents had passed away.  He received education up to Class 8 and served as a worker in a cotton shop after graduation.

7.His brother (a Muslim) met Sheila who came from a wealthy and traditional Hindu family.  Her father Manmoham was politically well-connected and was acquainted with members of the Assembly and Parliament.  Manmoham was the head of Deopur Village and worked under a member of the Bharatiya Janata Party (“BJP”).

8.In 1995, his brother told him that he would run away with Sheila to Nepal.  When Sheila’s family found out that Sheila had left, they came to his home and beat his mother and sister-in-law.  They beat him with fists and wooden sticks and he sustained bruises all over his body and bled from his head.  The attackers told them that they would be killed unless Shelia returned.  The Applicant promised to contact his brother.

9.His brother told him that he would only return if Sheila’s parents consented to their marriage.  In the next three years, Sheila’s family kept harassing his family and attacking him.  They demanded Sheila’s return.

10.After an attack in October 1998, the Applicant made a report to the Bara Chakia Police Station.  His wife and children went to live with his mother-in-law and he fled to Kolkata. He had to move from place to place in Kolkata because Sheila’s family continued to cause him trouble there.  In March 2005, Sheila’s parents found out his location with the help of local people and attacked him in his home in Kolkata.  Realising that it was unsafe for him to remain in India, he fled to Hong Kong via Bangladesh.

11.After arriving in Hong Kong, he learnt that Sheila’s family continued to harass his family in India. His wife and children had to illegally relocate to Nepal to avoid Sheila’s family.  They live with his brother and Sheila in Nepal. 

12.The Applicant believed that the Indian police would not protect him as his brother had eloped with Sheila.  He also claimed that through his connection with the BJP, Manmoham would be able to locate him anywhere in India.

The finding of the Board

13.The Board identified numerous inconsistencies between the Applicant’s evidence in his NCF and that in his oral testimony before the Board.  Particularly, the Board noted that he identified multiple attacks on him in his claim before the Director, including an attack in October 1998, but in his testimony before the Board he said he was attacked once only.  In his written statement he claimed that his house was burnt down by Sheila’s family but he told the Board that Sheila’s family had never damaged his property.

14.The Board accepted that the Applicant’s brother had run away with Sheila and that Sheila’s family might have attacked him in 1995.  However, the Board did not accept the rest of his claims were true, such as the alleged attacks other than the first one and the alleged political connection and wealth of Manmoham.

15.The Board noted that Sheila’s family had the power and opportunity to cause the Applicant serious injuries in 1995 but did not do so.  The Board accepted that Sheila’s family might still be “bitter and disappointed” because of the eloping incident.  However, it found that Sheila’s family had given up targeting the Applicant’s family, as evidenced by the absence of harassment to the Applicant’s sisters.  The Board held that they have no intention to cause the Applicant serious harm and hence he would not face any real risk of harm from Sheila’s family or anyone else upon his return to India.  It therefore dismissed his appeal.

The legal principles applicable to judicial review

16.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[4].  Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

17.The Applicant did not put forward any grounds in his Form 86.  In his supporting affirmation, he exhibited the Decision and said he was not satisfied with the decision of the Immigration Department.  The Court assumed that he was also referring to the Board’s Decision.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to India.  For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.

Discussion

18.In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Board found the Applicant not credible on the crucial issues of his risk of harm upon his return to India.  Basically, he failed to discharge his burden of proving his fears and risks.   It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

19.For the above reasons, leave to apply for judicial review was refused.

Dated 8^th day of August 2022.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1

[1] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[2] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[3] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[4] [2018] HKCA 524 at para 14(1)